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5. Even if it is accepted that the Money Execution Cases Nos. 9/1990, 10/1990 and 11/1990 were nothing but applications under Section 39 of the Act, in that event acquisition of tenancy by proforma defendant No.10 may be correct and lawful. But if thereafter the proforma defendant No.10 had inducted the present judgment debtors as sub-tenants as indicated in paragraph -14 of plaint, in that event, the judgment debtors might have acquired status of occupancy tenancy by operation of law under Section 50(a) of the Act. But the judgment debtors did not appear before the learned trial court in Title Suit No. 44 of 2007 and did not place their case. Under such circumstances, a decree has already been passed declaring them as trespassers and so at this stage unless and until the exparte decree passed in title Suit No. 44 of 2007 is set aside or modified it does not fit in the mouth of the judgment debtor to claim that they are tenant and not trespassers. Now, when the claim of occupancy tenancy of the judgment debtors with respect to the suit land does not appear to be sustainable in view of aforesaid facts yet question remains as to whether plaintiff being a landlord within the meaning of 1971 Act can at all claim khas possession of the suit. The scheme of the Act shows that a tenant can be evicted only if the conditions precedent mentioned in Section 51 of the Act is satisfied which provides that if an occupancy tenant changes the nature and character of the tenanted premises, in that event, he can be evicted. The same is not applicable in case of a non occupancy tenant. A non-occupancy tenant can be evicted even for non- payment of rent. But although a suit for eviction of occupancy tenant for non payment of rent is not contemplated under the Act in view of recital made in Section 51 thereof but a scope has been left open for unsettling an occupancy from the tenanted premises under Section 39 of the Act. Section 39 of the Act provides for sale of holding for arrear of rent in the certain cases. According to this section where the unsatisfied rent decree relates to arrear of rent in respect of a holding of any occupancy tenant, he shall not be liable to ejectment for such arrear but his holding shall be liable to sale in execution of unsatisfied rent decree and the landlord shall instead of filing suit for ejectment submit an application accompanied by the rent decree to the competent civil court for attaching and putting the holding of defaulting tenant and the decree for rent shall be satisfied out of the proceeds of due sale. This means that tenant will change and a new person making payment of the arrear rent will step into the shoe of the earlier occupancy tenant. The Act, therefore, contemplates only a situation where tenancy continues to remain but tenants may vary. The irresistible conclusion is that once an occupancy tenancy is established, the landlord does not appears to have any scope to get khas possession of the suit land even by evicting the defaulting tenant. This being the position, the suit of the plaintiff in so far as it relates to recovery of khas possession by evicting the principal defendants, was a nullity but the claim of the plaintiff for mesne profit by holding him a trespasser cannot be said to be unsustainable . The learned executing court, therefore, was correct in holding that no decree for eviction against the defendants can passed or executed in view of the aforesaid provison of law. But at the same time, learned trial court does not appear to have correctly held that the execution case is liable to be dismissed in entirety. The part of the decree in so far as it relates to realization of mesne profit only to the extent of Rs.3000/- along with interest still continues to remain and that part of the decree is executable.